Rivera v. United States Citizenship & Immigration Servs.

For United States Citizenship and Immigration Services, Defendant: Patricia L. Buchanan, LEAD ATTORNEY, U.S. Attorney Office SDNY, New York, NY.

OPINION

Thomas P. Griesa, United States District Judge.

Page 440

Omar Rivera petitions the court for review of the denial of his application for naturalization and a de novo hearing on his application. His complaint alleges that he is legally entitled to naturalization.

The Government moves for summary judgment, contending that Rivera is statutorily barred from naturalization because he cannot prove good moral character. The motion is granted.

The Facts

Rivera, a native and citizen of Panama, was admitted to the United States as a permanent resident in March 1991. In his application for permanent-resident status, he indicated that he had never been arrested.

On December 14, 1995, Rivera filed an application for naturalization. On the application for citizenship, Rivera again indicated he had never been arrested. During his naturalization interview, Rivera affirmed under oath that he had not been arrested. At the conclusion of the interview, the examiner granted conditional approval of Rivera's application, pending fingerprinting and a criminal history investigation.

On November 12, 1996, immigration investigators discovered that Rivera had been arrested by U.S. federal agents in Panama in 1988. The arrest was part of an undercover operation that resulted in the seizure of five kilograms of cocaine. As a result of this discovery, immigration officials voided Rivera's conditional approval for naturalization. But neither the results of the investigation nor the revocation were disclosed to Rivera, despite his inquiries. His application for naturalization remained pending.

Page 441

On April 30, 1998, Rivera was indicted in federal court in Alabama for conspiracy to distribute ten kilograms of cocaine. In June 1999, Rivera pleaded guilty to the offense of misprision of a felony, admitting that he received money from members of a cocaine conspiracy and concealed the conspiracy. He was sentenced to two years of imprisonment. Upon his release on October 16, 2000, he was taken into custody by immigration authorities for removal proceedings based on the 1999 conviction. These proceedings were terminated on October 31, 2000, and no order of removal was entered.

Rivera was arrested again on May 28, 2004, and charged with conspiracy to distribute cocaine in violation of federal law. He pleaded guilty on October 21, 2005, and in January 2006, he was sentenced to 120 months of imprisonment. Rivera is currently serving this sentence.

In February 2011, Rivera filed suit to compel the United States Citizenship and Immigration Services (" USCIS" ) to issue a decision on his still-pending naturalization application. The court, Judge Scheindlin, presiding, ordered the agency to issue a decision. On November 8, 2011, USCIS denied Rivera's application. The agency determined that Rivera failed to establish the statutorily required good character because of his 2006 conviction for drug trafficking. The agency also based the denial on Rivera's prison ...

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